Explanatory Memorandum to COM(2008)893 - Procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering applicable law in contractual and non-contractual obligations - Main contents
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| dossier | COM(2008)893 - Procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning ... |
|---|---|
| source | COM(2008)893  |
| date | 23-12-2008 |
- Grounds for and objectives of the proposal
Pursuant to Article 65 of Title IV of the EC Treaty, introduced by the Treaty of Amsterdam, several Community instruments in the field of civil justice have been adopted.[1]
Apart from this Community law acquis , the field of civil justice is for many Member States also characterised by a number of bilateral agreements which they concluded with third countries prior to the entry into force of the relevant provisions of the Amsterdam Treaty or prior to their accession to the European Community. To the extent that such pre-existing agreements contain provisions that are not compatible with the EC Treaty, Member States need to take all steps to eliminate the incompatibilities, pursuant to Article 307 of the EC Treaty. The European Court of Justice has confirmed that if necessary, Member States are required to denounce agreements that are incompatible with the acquis .
Apart from pre-existing bilateral agreements , there may also be a need for the conclusion of new agreements with third countries governing areas of civil justice that come within the purview of Title IV of the EC Treaty. In line with the development of the European judicial area related to cooperation in civil and commercial matters, the Community has acquired exclusive external competence to negotiate and conclude international agreements with third countries on a number of important subject matters referred to in Title IV of the EC Treaty. This was confirmed by the ECJ in its Opinion 1/03 of 7 February 2006 relating to the conclusion of the new Lugano Convention.[2] The Court confirmed that the Community has acquired exclusive competence to conclude international agreements with third countries, on matters affecting the rules set out inter alia in Regulation (EC) No 44/2001 ("Brussels I"), in particular on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In its opinion the Court found that the analysis of the provisions of the new Lugano Convention relating to the rules on jurisdiction demonstrated that those provisions affect the uniform and consistent application of the Community rules on jurisdiction and the proper functioning of the system established by those rules.[3] With regard to the proposed Convention's rules on recognition and enforcement of judgements the Court came to a similar conclusion. It found that the Community rules on the recognition and enforcement of judgments are indissociable from those on the jurisdiction of courts, with which they form a unified and coherent system, and that the new Lugano Convention would affect the uniform and consistent application of the Community rules as regards both the jurisdiction of courts and the recognition and enforcement of judgments and the proper functioning of the unified system established by those rules.[4]
Consequently, it must be assumed that the Community has acquired exclusive competence for the negotiation and conclusion of many of the bilateral agreements referred to above.
Nevertheless, it has to be assessed if there currently exists a sufficient Community interest for the Community to replace all such existing or proposed agreements between Member States and third countries with Community agreements. For that reason it is necessary to establish a procedure with a twofold purpose. The first is to allow the Community to assess whether there is such a sufficient Community interest in the conclusion of a particular agreement. The second is to authorise Member States to conclude the agreement at issue if there is no current Community interest in the conclusion of a Community agreement.[5]
The foregoing is in line with the conclusions of the JHA Council of 19 April 2007.[6]
The Commission has accepted that a procedure should be devised also for agreements affecting the Rome II i and Rome I i Regulations i.
Accordingly, the Commission proposes that such a procedure should be devised for certain bilateral agreements concerning sectoral matters. The proposed procedure therefore covers two different categories of sectoral subject matters. One proposal relates to sectoral matters pertaining to jurisdiction, recognition and enforcement in matrimonial matters, matters of parental responsibility and maintenance obligations and applicable law in matters relating to maintenance obligations. The other proposal concerns sectoral matters pertaining to the law applicable to contractual and non-contractual obligations.
The present proposal concerns a procedure for granting authorisation to Member States in the second area mentioned, that is the law applicable to contractual and non contractual obligations for sectoral matters. Simultaneously with this proposal, the Commission is putting forward a separate proposal for a similar procedure for the area of matrimonial matters, parental responsibility and maintenance obligations. As the latter is governed by unanimity, these proposals must be put forward in separate acts.
The Commission evaluated a range of different options to achieve the objective described above, although without carrying out a formal impact assessment, taking into account the particular nature of the subject. Two meetings with experts from the Member States were held in Brussels, on 11 March and 26 May 2008, to exchange ideas and views.
Generally, as regards the scope of the proposal, the Member States would have preferred a horizontal instrument which would take into account both the sectoral type of bilateral agreements and the 'Lugano type' agreements concerning jurisdiction, recognition and enforcement of decisions in civil and commercial matters, and even the 'broad agreements' on legal cooperation which may cover criminal, civil, family or administrative matters.
Nevertheless, such agreements dealing with issues such as jurisdiction, recognition and enforcement in the civil and commercial area in general are likely to undermine the Community legal framework established in the area of judicial cooperation in civil and commercial matters, and therefore to excessively affect the existing acquis which is based on a concept of integration and of legal certainty for European citizens with a view to facilitating their access to justice.
Consequently, since this must be regarded as a derogation procedure in relation to Community law, the system proposed by the Commission is limited to the essential minimum to achieve the objectives described above.
Several options were examined by the Commission for setting up the procedure.
The 'passive' status quo, i.e. opting not to take any measures to solve the problem, would make it impossible for the Member States to conclude agreements with third countries in the identified fields.
The 'active' status quo would involve opting not to develop any legislative procedure for the re-delegation of Community powers. All agreements between the Member States and third countries would have to be negotiated and concluded by the Community under the procedure in Article 300 of the EC Treaty, even if only one Member State has an interest in such an agreement.
The next option consists in the issuing of an authorisation by the Community, based on general criteria laid down by a legislative instrument (for example, a Regulation) or by a Council decision (on the basis of the aforementioned legislative instrument). The advantage of this option is that there would be a simpler procedure establishing a common approach in all situations. The drawback of this option is that it presupposes that conditions allowing the Member State to negotiate and conclude agreements with third countries should be established in advance. Since the area of judicial cooperation in civil matters is constantly making progress within the Community, this would entail the need to establish different criteria for each instrument of the acquis (Brussels II Regulation, Rome I Regulation, Rome II Regulation, draft Regulation on maintenance obligations, etc.).
In contrast, the last option selected by the Commission envisages a specific authorisation to be granted on a case-by-case basis after having assessed the agreement notified by the Member State on the basis of objective criteria. The Commission issues negotiating guidelines to the Member State, if necessary, and conducts an evaluation of the outcome of negotiations before allowing the agreement to be finally concluded.
Contents
- Summary of the proposed action
The objective of the proposal is to establish a procedure for the Community to make an assessment of whether there is a sufficient Community interest in the conclusion of proposed bilateral agreements with third countries, and in the absence thereof authorise the Member States to conclude these agreements with third countries in certain fields concerning judicial cooperation in civil and commercial matters falling under the exclusive competence of the Community.
Because the authorisation to Member States derogates from the rule that the Community is exclusively competent to conclude international agreements on these matters, the procedure must be regarded as an exceptional measure and must be limited in scope and in time.
It is proposed to limit the procedure in question only to sectoral issues related to matrimonial matters, parental responsibility and maintenance obligations on the one hand, and, on the other hand, to the law applicable to contractual and non-contractual obligations. The enclosed proposal deals with the second subject matter.
The Commission proposes the following guarantees in order to preserve the acquis communautaire including the integrity of the Community system in the area under consideration.
The procedure is based on prior notification of the draft agreement by the Member State that wish to obtain the authorisation to re-negotiate and conclude the agreement with the third country on the basis of specific conditions to be evaluated on a case-by-case basis.
If the Community has already concluded an agreement on the same subject matter with the third country concerned, the Member State is not allowed to negotiate or conclude the agreement with the third country concerned and any application submitted will be rejected. If that is not the case, the Commission must determine whether such an agreement is expected in the near future. If no such agreement is expected in the near future the Commission may grant authorisation, provided that the following two conditions are met: (a) the Member State concerned has demonstrated that it has a specific interest in concluding an agreement with the third country, related in particular to the existence of economic, geographic, cultural or historical ties between the Member State and that third country; and (b) the Commission determines that the proposed agreement is of limited impact on the uniform and consistent application of the Community rules in place and on the proper functioning of the system established by those rules.
The procedure also provides for the inclusion in the agreements of sunset clauses to limit the validity in time of the agreements concluded by the Member States until the point when the Community concludes an agreement on the same subject matters with the third country concerned.
- Legal basis
The legal basis for the enclosed proposal on the agreements concerning sectoral matters and covering the law applicable to contractual and non-contractual obligations is Article 61(c) and Article 65 of the EC Treaty, which state that the measures in the field of judicial cooperation in civil matters having cross-border implications are to be taken in accordance with Article 67 i, second indent, i.e. on the basis of the co-decision procedure.
- Subsidiarity principle
The proposal falls under the exclusive competence of the Community. The subsidiarity principle therefore does not apply.
- Proportionality principle
The proposal complies with the proportionality principle for the following reasons:
The proposed procedure constitutes an exception to the exercise of exclusive Community competence in the matters set out above.. It is limited to what is strictly necessary to allow Member States to conclude agreements with third countries in the fields identified and sets out a number of criteria that need to be met. An authorisation for Member States will only be given if the proposed agreement can be considered as having only a negligible impact on the applicable Community system.
The proposed procedure makes use of the comitology procedure, as a legislative procedure is not considered necessary and taking into account the fact that the proposed procedure concerns the implementing powers of the Commission.
The proposed procedure thus reduces the administrative burden falling on the Community and on the national governments to the essential minimum.
- Choice of instruments
Proposed instrument(s): Regulation.
Other means would not be adequate for the following reasons:
As the proposed procedure provides for a derogation from Community law, a Regulation is the instrument which is directly applicable and provides the fullest guarantees as regards legal certainty and equal treatment.
The proposal has no implication for the Community budget.
- Review/revision/sunset clause
The proposal includes a review clause and a sunset clause.
- Detailed explanation of the proposal
Scope (Article1)
Article 1 limits the scope of the present proposal to the fields covered by Regulation (EC) No 593/2008 on the law applicable to contractual obligations and Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations, and only in sectoral matters.
Article 2 states that only bilateral agreements between a Member State and a third State are covered by the procedure established by the present proposal. Therefore, multilateral agreements (including in particular regional agreements) are not covered by the proposed procedure.
The proposed procedure is intended to establish a functional arrangement with reduced formalities. At the same time, it ensures that the acquis communautaire can be safeguarded.
The procedure requires (Article 3) the Member State to notify the Commission in writing of its intention to undertake negotiations on a new agreement or in order to amend an existing agreement. The notification must include a copy of the draft agreement if available and any other relevant documentation. This notification is to be made not later than three months before the beginning of the negotiations with the third country concerned.
Upon receipt of the notification, the Commission will need to assess whether the Member State can proceed with the negotiations (Article 4). If the Community has already concluded an agreement on the same subject matter with the third country concerned, the application will be automatically rejected. The assessment comprises the following steps. If no agreement has been yet concluded by the Community with the third country concerned, the Commission must determine whether such an agreement is expected in the near future. If no such agreement is expected in the near future the Commission may grant authorisation, provided that the following two conditions are met: (a) the Member State concerned has demonstrated that it has a specific interest in concluding an agreement with the third country, related in particular to the existence of economical, geographical, cultural or historical ties between the Member State and that third country; and (b) the Commission determines that the proposed agreement is of limited impact on the uniform and consistent application of the Community rules in place and on the proper functioning of the system established by those rules.
If the Commission considers, in the light of the conditions referred to above, that there are no obstacles to the proposed agreement, it can permit the Member State to open the negotiations (Article 5). Where necessary, the Commission can propose negotiating guidelines and can request the inclusion of particular clauses.
The agreement must also contain a sunset clause for its termination, should the European Community conclude an agreement with the third country in question.
The decision on whether or not to permit the negotiations is taken by the Commission with the assistance of an advisory committee under Article 3 of Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission i. As it is aimed at limiting formalities to the essential minimum, the advisory procedure is justified. The Commission submits to the Committee a draft of the measures to be taken, on which the committee expresses an opinion. The Commission then decides, taking this opinion into account as far as possible, and informs the committee of the manner in which the opinion has been taken into account.
If the outcome of the Commission's evaluation is negative, the Commission does not give its authorisation and submits this decision to the opinion of an advisory committee.
The Commission can decide to take part in the negotiations between the Member State and the third country as an observer. If the Commission itself does not participate, it has to be informed of the results during the various stages of the negotiation, in order to be able to deliver to the Member State its opinion on the content of the agreement before its final conclusion in the interest of efficiency (Article 6).
The final stage of the procedure concerns the conclusion of the agreement (Article 7). Before initialling the agreement, the Member State concerned must notify the Commission of the outcomes of the negotiations and provide it with the text of the agreement. The Commission will assess whether the agreement is in conformity with the negotiating guidelines and whether the conclusion of the agreement can be considered to have a negative impact on the operation of the Community system in place, in particular whether (in which extent) it is likely to affect the acquis communautaire in force. If the Commission's evaluation is positive, it will give its authorisation. If the assessment is negative, the Member State concerned is not authorised to proceed with the agreement. This decision is taken in accordance with the management procedure under Article 4 of Council Decision 1999/468/EC.
It is proposed that the Commission takes its decision in relation to each relevant stages of the assessment procedure within six months of the relevant notification by the Member State.
Article 9 lays down transitional provisions which are to be applied in cases where, at the time of the entry into force of the Regulation-, the Member State concerned has already started negotiations with the third country or has already concluded them, but has not yet given its consent to be bound by the agreement.[11]
The proposed procedure thus also applies to this situation, subject to the necessary adjustments: notification of the (draft) agreement to the Commission; assessment by the Commission on the basis of the conditions listed in Article 4 of the proposal; authorisation to continue the negotiations and establishment of negotiating guidelines if the stage of negotiations so permits; and authorisation to conclude the agreement.
Article 10 stipulates that the Commission will submit to the European Parliament, the Council and the Economic and Social Committee a report concerning the application of the Regulation at the latest by January 2014. The report is to be accompanied, by an appropriate legislative proposal, given that the application of the Regulation is limited until the 31st December 2014.